The State v David Mabo

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, J
• Judgment Date: 18 June 2009
• Citation: (2009) N3884
• Court: National Court
• Year: 2009
• Judgement Number: N3884

Full : CR NO. 1158 of 2008; The State v David Mabo (2009) N3884

National Court: Kandakasi, J

Judgment Delivered: 18 June 2009

N3884

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1158 of 2008

THE STATE

-V-

DAVID MABO

Kimbe: Kandakasi, J.

2009: 3rd & 18th June

CRIMINAL LAW – Sentence – Demand for Compensation With Intent to Extort – In the company of others – Armed with threats of violence – Victim meeting demand to avoid threatened harm or injury – Guilty plea – De facto provocation - Prior conviction – Willing and able to repay compensation received - Prevalence of offence – Deterrent sentence called for – Sentence of 4 years part suspended on conditions imposed – Section 390 A (a) (b) (i) and (ii) of Criminal Code.

Cases Cited:

The State v Titus Kep, Peter Ben, Kowi Tum, Paul Teke and Philip Womi (2004) N2616

Counsel:

F. Popeu, for the State

D. Akeya, for the Accused

18th June, 2009

1. KANDAKASI J: You pleaded guilty to a charge of demanding compensation with intent to extort contrary to s. 390A (a) (b) (i) and (ii) of the Criminal Code. Following your guilty plea, you through your learned counsel, Mr. Kari, asked for a part suspended sentence of 3 years. The State through its learned counsel, Mr. Popeu, concurred with your lawyer’s submission. This does not mean however, that the Court must impose the sentence you are asking for. Instead, there is a duty on the Court to determine an appropriate sentence for you.

Relevant Issue

2. From the arguments of the parties, clearly therefore the issue for the Court to determine is, what is an appropriate sentence in your case? Whatever sentence the Court eventually decides to impose, must reflect and befit the circumstances in which you committed the offence, including how you committed the offence. This can be ascertained from the relevant facts.

Relevant Facts

3. The relevant facts start with you and two of your brother in-laws having a confrontation with a Morobean family, sometime before 25th March 2004. That family lived at Section 2 at Sarakolok Oil Palm Settlement, here in Kimbe. The confrontation resulted in you receiving a cut to one side of your ear. During the night of 25th March 2004, you went to Kero Wando’s (a Morobean) block and demanded compensation from him. You were armed with bush and grass knives and sticks and stones. You went directly to Kero Wando and demanded compensation in the sum of K1,180.00 in cash for an injury to your ear. You issued threats of violence unless Kero Wando met your compensation demand. Out of fear, Mr. Wando met your demand.

4. In your allocutus, you said sorry for what you have done and pleaded for mercy and good behaviour bond. In so pleading, you pointed out that, you are married with 5 children, who you need to provide for in terms of their subsistence and education and other needs.

Submissions

5. In his submissions on your behalf, your learned counsel Mr. Kari added that, you are aged 28 years old, 23 at the time of committing the offence. He also pointed out that the police arrested you on 25th March 2004. Following that, you spent 2 weeks in the police cells and a further 3 months in the Lakeamata Correction Services. Thereafter you went before the District Court, which struck out the case against you. Police however, had you re-arrested and had you in their cells for 3 weeks and a further 3 months in the custody of the Correction Services. So you spent a total of 7 months and 2 weeks in custody.

6. Your learned counsel urged the Court to take into account the fact that you pleaded guilty to the charge and that you expressed remorse. He also urged the Court to note that, you acted under a form of de factor provocation. Your learned counsel also urged the Court to note that, apart from your demanding compensation, the confrontation and the threats were under the leadership of some of your other relatives. At the same time, your learned counsel acknowledged that, you have a prior conviction for being in possession of a firearm, which is a dangerous and offensive weapon. Nevertheless, you learned counsel urged the Court to note that, that offence was committed 13 years ago.

7. As earlier noted, your learned counsel acknowledges that, the offence you committed carries a maximum penalty of 7 years. Your learned counsel then submitted that, a sentence of 3 years is appropriate having regard to the particular circumstances of your case. The learned counsel for the State agreed with the submissions of your learned counsel.

Consideration

8. Neither learned counsel drew the Court’s attention to any case law on point for the Court’s assistance. My own research led me to the decision of my learned brother Honourable Justice Sevua in the case of The State v Titus Kep, Peter Ben, Kowi Tum, Paul Teke and Philip Womi (2004) N2616. That was a case out of Kimbe. The prisoners in that case were men who led a whole group of people from the Southern Highlands and Morobe Provinces to made a substantial demand for compensation in the amount of K596, 937.72 to be paid within 7 days backed by threats of violence. They also unlawfully confiscated several motor vehicles belonging to the New Britain Palm Oil Limited (NBPOL), which were subsequently returned. His Honour noted that, there was almost total mayhem and total anarchy. Even initial police intervention meant nothing to the prisoners and those they were leading.

9. The prisoners pleaded guilty to the charge and were all first time offenders. Despite pleas for a lenient sentence, His Honour was of the view that a custodial sentence was called for. Accordingly, His Honour imposed a sentence of 5 years to serve in hard labour for the ring leader and the rest 4 years each. In imposing that sentence, His Honour correctly noted in my view that, making compensation demands in the way the prisoners made was not only a serious breach of the law but a threat to foreign investment in our country. If such investments got withdrawn, discouraged and or prevented, the country and her people stand to loose far more, all because of the senseless and selfish acts of a few.

10. His Honour noted that, such act and threats of violence is not a civilized and or acceptable way of resolving conflicts. His Honour noted and I agree that, resorting to such conduct results in much trauma, pain and anguish to those against whom such acts are directed.

Sentence in Your Case

11. For the purposes of arriving at an appropriate sentence for you, I note that your case is not as serious as the case I have just cited. That is however only in terms of the amounts of money involved and the amounts of properties and lives then under threat. This does not mean that your case is any less serious because you also acted in a group and confronted a family which is not originally from this Province. The victim and his family came here because of the business generated by the NBPOL. I note there are lot more people from outside this province actively contributing to the operations of the NBPOL and the other companies that exist and operate out of this Province.

12. I note with much concern that, it has become the norm through out most of our country to resort to demands for compensation for just about everything. Such demands are usually accompanied by threats of violence to ensure that the demands are meet. This practice or culture of compensation demand has become much more of a hindrance to development and progress in our country. There has been much debate on the question of whether demands for compensation should be...